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THE HISTORICAL INTERPRETATION OF 

UNABRIDGED 

FREEDOM OF SPEECH, 

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BY 

THEODORE SCHROEDER. 


A chapter from “Obscene Literature and Constitutional Law A 


Republished from Central Law Journal , March , iqio. 

FOR 

FREE-SPEECH LEAGUE, 

120 Lexington ave. 

New YORK. 


SECOND EDITION. 





























Sir Leslie Stephens on Toleration. 

“The doctrine of toleration requires a positive as well as a neg¬ 
ative statement. It is not only wrong to burn a man on account of 
his creed, but it is right to encourage the open avowal and defence of 
every opinion sincerely maintained. Every man who says frankly and 
fully what he thinks is so far doing a public service. We should be 
grateful to him for attacking most unsparingly our most cherished 
opinions.**** 

“Toleration, in fact, as I have understood it, is a necessary co¬ 
relative to a respect for truthfulness. So far as we can lay it down as 
an absolute principle that every man should be thoroughly trustworthy 
and therefore truthful, we are bound to respect every manifestation 
of truthfulness. ****A man must not be punished for openly avowing 
any principles whatever.**** 

‘ ‘Toleration implies that a man is to be allowed to profess and 
maintain any principles that he pleases; not that he should be allowed 
in all cases to act upon his principles, especially to act upon them to 
the injury of others. No limitation whatever need be put upon this 
principle in the case supposed. I, for one, am fully prepared to listen 
to any arguments for the propriety of theft or murder, or if it be pos¬ 
sible of immorality in the abstract. No doctrine, however well es¬ 
tablished, should be protected from discussion. The reasons have 
been already assigned. If, as a matter of fact, any appreciable number 
of persons is so inclined to advocate murder on principle, I should 
wish them to state their opinions openly and fearlessly, because I 
should think that the shortest way of exploding the principle and of 
ascertaining the true causes of such a perversion of moral sentiment. 
Such a state of things implies the existence of evils which cannot be 
really cured till their cause is known, and the shortest way to discover 
the cause is to give a hearing to the alleged reasons.” From “The 
Suppression of Poisonous Opinions” in The Nineteenth Century , 
March and April, 1883. 




THE HISTORICAL INTERPRETATION OF 


UNABRIDGED 

FREEDOM OF SPEECH 


THEODORE SCHROEDER. 

II 


A chapter from “Obscene Literature and Constitutional Law. 



Republished from Central Law Journal , March , iqio. 

FOR 

FREE-SPEECH LEAGUE, 

120 Lexington Ave. 

New York. 
















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THE HISTORICAL INTERPRETATION OF 
“FREEDOM OF SPEECH AND OF 
THE PRESS.” 

The purpose is to re-interpret our constitutional guarantee 
for an unabridged freedom of speech and of the press, by the 
historical or scientific method, and with special reference to the 
specific issue raised by the judicial dogmatism thereon and my 
different conception of how that phrase ought to be interpreted. 
To clarify the issues, 1 restate these contradictory propositions,, 
so the reader may have them constantly in mind during the 
following discussion. 

My contention as to the meaning of a constitutionally guar¬ 
anteed right to unabridged freedom of speech and of the press, 
is this: No matter upon what subject, nor how injurious to 
the public welfare any particular idea thereon may be deemed 
to be, the constitutional right is violated whenever anyone is 
not legally free to express any such or other sentiments, either; 

First, because prevented in advance by a legally created 
censorship, or monopoly in the use of the press, or by other 
governmental power, or; 

Second, because in the effort to secure publicity for any 
idea whatever, the equality of natural opportunity is destroyed, 
in that some, by subsequent legal penalties or other legal limi¬ 
tations, are deterred, or are impeded, in the use of the ordinary 
and natural methods of reaching the public, on the same legal 
terms, as these are permitted to any person for the presentation 
of any other idea, or; 

Third , because the natural opportunity of all is abridged by 
some statutory impediment, such as taxes upon the dissemina¬ 
tion of information placed upon all intellectual intercourse, as 
such, or on all of a particular class, or; 

Fourth, because inequalities in State-created, or State- 
supported, opportunity is legalized, so that, in the effort to 
secure publicity for any sentiments and merely because of their 

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nature, literary style, or supposed evil tendency, any one is 
discriminated against, either by law, or for any cause by any 
arbitrary exercise of official discretion, in the use of such State- 
created or State-supported facilities, or; 

Fifth , because after expressing one’s sentiments one is by 
law liable to punishment, merely for having uttered disap¬ 
proved thoughts; 

Provided always, that the prohibition, abridgment, discrim- 
r'"tion, subsequent punishment, or other legal disability or 
<Y advantage, is arbitrarily inflicted, or attaches merely because 
of the character, literary style, or supposed bad tendency of 
the offending sentiments, and their spread among sane adults, 
willing to read, see, or hear them, or is the result of arbitrary 
official discretion, and that they do not attach because of any 
inseparably accompanying, or other resultant penalized invasive 
act, constituting an actually ascertained, resultant, material 
injury, (as distinguished from mere speculative or constructive 
harm) inflicted, or by overt act attempted to be inflicted, before 
rarest and punishment, and in either case actually resulting 
from the particular utterance involved. 

But, if the injury is to reputation, or loss of public esteem, 

and among the consequences is material injury to the libeled 

person, even then, truth and justifiable motive must always be 

recognized by law as a complete defense; and where the 

* 

resultant injury consists in violence to person or property, 
actually attempted or achieved, then the intent to achieve such 
results must be of the essence of the crime, and punishment 
of a mere speaker must be only that of an accessory before the 
fact, if our constitutional guaranty is to be made effective. 
I do not discuss civil remedies. 

THE JUDICIAL INTERPRETATION. 

The contrary conclusion of the Courts is well summarized 
by a dictum, perhaps hastily uttered, of the Federal Supreme 
Court. These are its words: “The main purpose of such con¬ 
stitutional provisions is to prevent all such previous restraints 
as had been practised by other governments, and they do not 
prevent the subsequent punishment of such as may be deemed 
contrary to the public welfare” l 1 

In England the licensing acts, which put a previous restraint 
upon publications, existed for only a short time, and finally 
expired in A. D. 1694/ It seems, therefore, according to the 

1 Patterson v. Colo., 205 U. S. 454, (462). 

2 Stevens’ “Sources of the Constitution of the U. S.,” p. 221; Patterson’s 
“Liberty of Press and Speech,” 50 and 51. 

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